Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
DETAILED ACTION
Election/Restriction
REQUIREMENT FOR UNITY OF INVENTION
As provided in 37 CFR 1.475(a), a national stage application shall relate to one invention only or to a group of inventions so linked as to form a single general inventive concept (“requirement of unity of invention”). Where a group of inventions is claimed in a national stage application, the requirement of unity of invention shall be fulfilled only when there is a technical relationship among those inventions involving one or more of the same or corresponding special technical features. The expression “special technical features” shall mean those technical features that define a contribution which each of the claimed inventions, considered as a whole, makes over the prior art.
The determination whether a group of inventions is so linked as to form a single general inventive concept shall be made without regard to whether the inventions are claimed in separate claims or as alternatives within a single claim. See 37 CFR 1.475(e).
When Claims Are Directed to Multiple Categories of Inventions:
As provided in 37 CFR 1.475 (b), a national stage application containing claims to different categories of invention will be considered to have unity of invention if the claims are drawn only to one of the following combinations of categories:
(1) A product and a process specially adapted for the manufacture of said product; or
(2) A product and a process of use of said product; or
(3) A product, a process specially adapted for the manufacture of the said product, and a use of the said product; or
(4) A process and an apparatus or means specifically designed for carrying out the said process; or
(5) A product, a process specially adapted for the manufacture of the said product, and an apparatus or means specifically designed for carrying out the said process.
Otherwise, unity of invention might not be present. See 37 CFR 1.475 (c).
Restriction is required under 35 U.S.C. 121 and 372.
This application contains the following inventions or groups of inventions which are not so linked as to form a single general inventive concept under PCT Rule 13.1.
In accordance with 37 CFR 1.499, applicant is required, in reply to this action, to elect a single invention to which the claims must be restricted.
Group I, claim(s) 1-4 and 12-13, drawn to a means of repelling pests, in particular snails/slugs, moles, ants and mole crickets, characterized in that is a composition comprising calcium oxide, calcium hydroxide and calcium carbonate, the calcium oxide accounting for not less than 10% by weight of the composition.
Group II, claim(s) 5-11, drawn to a method of repelling pests, in particular snails/slugs, moles, ants and mole crickets, characterized in that the pest repellent specified in claim 1 is spread on a ground in the amount of 60-120g per square meter of a ground surface.
The groups of inventions listed above do not relate to a single general inventive concept under PCT Rule 13.1 because, under PCT Rule 13.2, they lack the same or corresponding special technical features for the following reasons:
Inventions I and II lack unity of invention because even though the inventions of these groups require the technical feature of a pest repelling composition comprising calcium carbonate, calcium hydroxide and calcium oxide not less than 10%. This technical feature is not a special technical feature as it does not make a contribution over the prior art in view of Guo-qiang et al. (CN 107318538A, presented in IDS); as evidenced by Moresova et al. (Ceramics Silikáty 45 (4) 158-163 (2001)) which teaches a pest control composition comprising calcium carbonate, calcium oxide not less than 10% and calcium hydroxide. The claimed invention therefore lacks unity of invention because the technical feature does not contribute over the prior art.
Applicant is reminded that upon the cancelation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i).
The examiner has required restriction between product or apparatus claims and process claims. Where applicant elects claims directed to the product/apparatus, and all product/apparatus claims are subsequently found allowable, withdrawn process claims that include all the limitations of the allowable product/apparatus claims should be considered for rejoinder. All claims directed to a nonelected process invention must include all the limitations of an allowable product/apparatus claim for that process invention to be rejoined.
In the event of rejoinder, the requirement for restriction between the product/apparatus claims and the rejoined process claims will be withdrawn, and the rejoined process claims will be fully examined for patentability in accordance with 37 CFR 1.104. Thus, to be allowable, the rejoined claims must meet all criteria for patentability including the requirements of 35 U.S.C. 101, 102, 103 and 112. Until all claims to the elected product/apparatus are found allowable, an otherwise proper restriction requirement between product/apparatus claims and process claims may be maintained. Withdrawn process claims that are not commensurate in scope with an allowable product/apparatus claim will not be rejoined. See MPEP § 821.04. Additionally, in order for rejoinder to occur, applicant is advised that the process claims should be amended during prosecution to require the limitations of the product/apparatus claims. Failure to do so may result in no rejoinder. Further, note that the prohibition against double patenting rejections of 35 U.S.C. 121 does not apply where the restriction requirement is withdrawn by the examiner before the patent issues. See MPEP § 804.01.
During a telephone conversation with Kushal Malhotra on 11/10/25 a provisional election was made without traverse to prosecute the invention of group I, claims 1-4 and 12-13. Affirmation of this election must be made by applicant in replying to this Office action. Claims 5-11 withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention.
Claim Rejections - 35 USC § 112, indefiniteness
The following is a quotation of 35 U.S.C. 112(b):
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-4 and 12-13 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention.
Claim 1 recites the limitation “in particular” which makes the claim indefinite. Regarding claim 1, the phrase "in particular" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35
U.S.C. 102 that form the basis for the rejections under this section made in this
Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale or otherwise available to the public before the effective filing date of the claimed invention.
Claim 1 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Guo-qiang et al. (CN 107318538A, translation provided in IDS); as evidenced by Moresova et al. (Ceramics Silikáty 45 (4) 158-163 (2001)).
Guo-qiang et al. discloses an oil based coating composition for protecting trees from pests in particular insects comprising: 20 parts of white cement (comprises 65.4-67 wt. % CaO; as evidenced by Moresova et al.), 30 parts of calcium hydroxide, 5 parts of calcium oxide, 5 parts of calcium carbonate, 3 parts of latex, 0.5 part of cellulose ether, 10 parts of vegetable oil, 5 parts of ethylene glycol, 5 parts of salicylic acid and 0.5 part of defoamer (see Example 1, pages 3-4, step (4) on page 4 and description on page 3 regarding insect pest control).
As evidenced by Moresova et al. the amount of Cao present in white Cement ranges from 65.4-67 wt.%, see table 2, page 162. Therefore, 20 parts of white cement as taught by Guo-qiang et al. would comprise 13.08 parts of CaO; (20* 65.4/100=13.08 parts of CaO). Thus, the total amount of Cao present will be equal to 13.08 parts +5 parts =18.08 parts of CaO in the composition. The total amount of all the components disclosed in the composition is 84 parts. Therefore, the total percentage of CaO in the composition will be; (18.08 parts of CaO ÷ 84 parts of total amount of components present in the composition × 100=21.5%) and 21.5% of CaO reads on the claimed amount for not less than 10%.
Claim 1 is therefore anticipated.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-4 and 12-13 are rejected under 35 U.S.C. 103 as being unpatentable over Sturm et al. (US Pub. 2017/0360046A) in view of Guo-qiang et al. (CN 107318538A, translation provided in IDS) in view of Yamamoto et al. (JP 3259865 B2); as evidenced by Moresova et al. (Ceramics Silikáty 45 (4) 158-163 (2001)).
Sturm et al. discloses calcium carbonate for plant protection, see title. Sturm et al. teaches use of calcium carbonate particles in a composition and further suggest adding calcium oxide and calcium hydroxide into the composition, see [0016] and [0017]. In an embodiment, the calcium carbonate is used in form of a powder and /or an aqueous suspension, see [0016] and [0053]-[0054]. The calcium carbonate can be used in any suitable form liquid or dry. It may be in the form of a dry powder or mixed with water or in granulated form, see [0049]. The composition is applied in the form of a spray, see [0019]. The pest includes nematodes, gastropods, insects and pathogens, see [0023].
Sturm does not teach the amount of calcium oxide as claimed.
As discussed above, Guo-qiang et al. in an embodiment, discloses an oil based coating composition for protecting trees from pests in particular insects comprising calcium oxide in an amount of 21.5 wt.%.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have utilized calcium oxide in an amount of 21.5% (not less than 10% by weight) in the composition of Sturm et al. One of ordinary skill would have been motivated to do so because Sturm et al. teaches pest control composition comprising calcium oxide along with calcium carbonate and Guo-qiang et al. while teaching a pest control composition disclose use of 21.5% wt. calcium oxide in the composition used for pest control properties.
Sturm does not teach the pest control composition to be in an aqueous solution form.
Yamamoto et al. teaches a pest control (insects) composition comprising calcium carbonate which is mixed with water to form an aqueous solution, see (claims 3-4 and 8-9).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have utilized calcium carbonate, calcium oxide and calcium hydroxide containing plant protection composition in the form of aqueous solution. One of ordinary skill would have been motivated to do so because Sturm teaches a pest control composition comprising calcium carbonate powder or particles in sprayable form for pest control and Yamamoto teaches use of calcium carbonate in the form of aqueous solution used for pest (insect control). Thus, both the references teach use of calcium carbonate comprising composition in particulate form and be mixed with water. Therefore, one of ordinary skill would have utilized the calcium carbonate comprising aqueous composition in the form of suspension as taught by Sturm et al. or in the form of aqueous solution as taught by Yamamoto et al.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SNIGDHA MAEWALL whose telephone number is (571)272-6197. The examiner can normally be reached Monday thru Friday; 8:30 AM to 5PM.
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/SNIGDHA MAEWALL/Primary Examiner, Art Unit 1612